Avodah Zarah 72a — the Talmud in English

And

it is still difficult for us:

What is meant by “not subject to returning”?

That is, why is he not obligated to return the stolen property, even if it is worth less than a peruta, for he did not acquire it at all? The Gemara answers: Rav Yohanan’s intention was to say

that

the theft of a gentile

is not subject to the law of returning.

That is, no obligation to return it applies to him. Since he did not acquire it at all, and wherever it is found, it is in the Jew’s possession.

The Gemara raises an objection:

If so,

if it is as you say, that the gentile did not acquire the stolen property at all,

say the latter clause: “His fellow came and took it from him; he is executed on its account.”

And this is difficult:

Granted

in

the first clause,

it is possible to say that the gentile is liable to death even though he did not acquire the stolen property,

because he caused distress to a Jew.

But

in

the latter clause, what can he do?

For he stole nothing, and certainly he is not executed because he caused distress to his gentile fellow?

Rather, learn from it: pulling by a gentile effects acquisition!

And according to the Gemara’s conclusion, indeed so:

learn from it,

and such is the halakha, that a gentile acquires and transfers ownership through pulling.

The Gemara below will bring additional laws derived from the words of our Mishna:

There was an incident involving

a certain man who said to his fellow, “If I sell this land, I will sell it to you” [If I sell this land, I will sell it to you], and they performed a formal act of acquisition concerning his words.

and they performed a kinyan regarding his statement.

After some time,

he went [the seller went]

the seller

, and sold it to another person [and sold the field to another person].

and sold the field to another person.

Rav Yosef said: The first acquired it [the first acquired the field].

the first one acquired the field.

Abaye said to him,

why did the first acquire the field,

for he did not set a price?

For at the time they performed the acquisition from him, they had still not agreed between themselves on the price of the field, and if so, he had not firmly resolved to transfer it to him?

And

the Gemara explains parenthetically,

from where do you say [from where did Abaye learn]

where did Abaye learn

that wherever he did not set a price, he did not acquire?

For we learned

in our Mishna:

, “One who sells his wine to a gentile: if he set the price before he measured it, its money is permitted; if he measured it before he set the price, its money is forbidden.”

And it is explained that if they did not agree between themselves on the price, even if they performed an acquisition, he did not acquire.

And from here Abaye raised an objection to Rav Yosef’s words: why did the first acquire it, when they had not agreed between themselves on the price beforehand?

In any event,

what has become of the matter?

That is, what is the law in the case before us: will the first acquire the land, in accordance with Rav Yosef’s words, or perhaps the second, like Abaye?

The Gemara answers:

What has become of the matter?! As we said: perhaps the stringency of forbidden wine is different.

That is, there is no proof from our Mishna, for perhaps even in a place where they did not agree on the price beforehand, if they performed an acquisition, the acquisition is effective. We do not fear that he did not firmly resolve to acquire it. Only in the case of forbidden wine, because of its stringency, did the Sages impose a stringency and forbid the wine where they did not set a price beforehand.

Come [come]

and

and hear,

another proof for Abaye’s words, that pulling without setting a price is ineffective:

for Rav Idi bar Avin said: There was an incident [there was an incident] in

that took place

the house

учения

of Rav Hisda, and Rav Hisda

learned from an incident that occurred in

the house

учения

of Rav Huna, and resolved it from that which we learned

in tractate Bava Batra (85b):

, “One who sells produce to his fellow, and sent him his animals and his laborers laden with produce. And the buyer

pulled

the animals and his laborers

and brought them into his house, whether he set

a price

before he measured

the grain,

or whether he measured it before he set the price, he did not acquire, and both of them may retract.”

And the reason: if he set the price before measuring, since the buyer did not pull the produce, he did not acquire it. And he may retract. And even though he pulled his laborers and brought them into his house, this is not pulling. Since pulling is ineffective with regard to human beings, until he pulls the produce that they carry, he did not acquire it.

If he measured before setting the price, even though he pulled the produce, his pulling is ineffective, since he did not set a price for it. And this is in accordance with Abaye’s words, that pulling before setting a price is ineffective.

And if he

unloaded

the seller or the buyer

and brought them into his house

of the buyer,

and

and set

a price for it, even

before measuring, neither of them may retract.

Since the buyer’s domain acquired the produce for him.

But if he

measured before setting the price,

since he did not set the price, the acquisition did not take effect, and

“both of them may retract.”

And from here there is proof for Abaye’s words, that pulling without setting a price is ineffective.

There was an incident involving

a certain man who said to his fellow, “If I sell this land, I will sell it to you for one hundred dinars [If I sell this land, I will sell it to you for one hundred dinars] .”

if I sell this land, I will sell it to you for one hundred dinars.”

And they performed an acquisition between them concerning this undertaking.

After some time,

he went and sold it to another person for one hundred and twenty.

He went and sold the land to another person for one hundred and twenty dinars.

Rav Kahana said: The first acquired it.

The first acquired it, and he will give him one hundred dinars. For he set a price, and they performed an acquisition.

Rav Yaakov of Nehar Pekod raised an objection to him: These dinars compelled him!

That is, the undertaking was that if he wished to sell the land at its value, then he would sell it to the first. But here, if the second had given him one hundred dinars, he would not have agreed to sell it, and only because he offered him more than its value did he agree to the sale. It follows that the high price caused him to sell the land against his will. And since he did not sell the land willingly, the second acquired it, and not the first.

And the halakha is in accordance with Rav Yaakov of Nehar Pekod.

Incidentally, additional laws relevant to this matter were brought here:

He said to him, “As they appraise it with three,”

that is, one who says to his fellow, “I will sell you this land at the price at which three will appraise it”: since he used the expression “an appraisal by three,” certainly his intention is to a court’s appraisal, and therefore

even two out of three.

Even if all three did not agree on one price, but two said a low price and the third a high price, or the reverse, we follow the majority.

But if he said, “I will sell you this land

as three will say [as three people will say] ,”

as three people will say,”

certainly he did not intend a court’s appraisal, and therefore

until they say it with three.

That is, the price is established only if all three agree on one price.

And similarly, if he said, “I will sell you this land

as four will appraise it [as four people will appraise it] ,”

as four people will assess it,”

since he added opinions beyond a court, certainly his intention is that the price will be established

until they say it with four.

Until they all say one price. We do not follow the majority.

And all the more so where he said to him, “As four will say,”

for his intention is not a court’s appraisal, but only until they all say one price.

And if he

said to him, “

I will sell you this land

as they appraise it [at the price at which they appraise it]

at the price at which it will be assessed

with three,” and three came and appraised it, and the other said to him [the seller],

the seller,

“Let three others come who are more expert” [bring three others who are more expert, and according to them we will establish the price] .

bring three others who are more expert, and let us establish the price according to their assessment.

Rav Pappa said: It is the law that he may prevent it.

That is, the seller can prevent him and compel him to appraise the land through three others.

Rav Huna, son of Rav Yehoshua, raised an objection to him: From where [do we know] that these are more expert? Perhaps these are more expert?

From where do we know that the latter are more expert than the former? Rather, certainly he cannot prevent him. And the price will be established as they appraised it initially.

And the halakha is in accordance with Rav Huna, son of Rav Yehoshua.:

Mishna:

Our Mishna will bring additional laws concerning one who sells wine to a gentile.

One who sells wine to a gentile, and

took the funnel and measured

wine

into the gentile’s small flask, and then measured again

wine with that same funnel

into a Jew’s small flask: if there is a residue of wine in it,

if a little wine remained at the bottom of the funnel from the wine that he poured for the gentile, the wine that he poured for the Jew

is forbidden.

A gentile

who pours from a vessel

containing kosher wine

into a vessel

containing forbidden wine

, what he pours from it is permitted, and what he pours into it is forbidden.

It will be explained in the Gemara.:

Gemara:

We learned there

in tractate Tohorot (chapter 8, Mishna 9):

“A flowing stream [a stream of water falling from above downward]

a flow of water falling from above to below

and a steep slope [water descending on a steep slope], and

water descending down a steep incline,

a moist liquid

that is not wet enough to make another thing wet, such as if one touches it with his hand, liquid capable of wetting another object will not rise on it,

are not a connection with regard to impurity,

for example, if an impure person touches the lower part of the flowing stream or the steep slope, the upper part remains pure. Or if there was liquid here and liquid there, with a moist liquid between them, and an impure person touched the moist liquid in the middle, the liquids on this side and that side remain pure.

And not a connection with regard to purification.

For example, if there were two ritual baths, and in one of them there were not forty se’a, but there was a flowing stream or a steep slope, or a moist liquid connecting them, it is not a connection, and one who immerses in the deficient ritual bath has not fulfilled his immersion.

But

a pool,

that is, a hollow in which water collected, is

a connection

both

with regard to impurity,

for example, if there were two liquids and a pool connected them, and an impure person touched one of them, the other is also impure;

and

both

with regard to purification,

for example, two ritual baths, one of which does not contain forty se’a, with a pool between them: both are valid.”

The Gemara brings a discussion that took place in the beit-midrash concerning the Mishna in Tohorot:

Rav Huna said: A flowing stream, a steep slope, and a moist liquid,

although they are not a connection with regard to impurity and purification, nevertheless they are

a connection with regard to the matter of forbidden wine.

For example, if one poured wine from a kosher vessel into a vessel containing forbidden wine, even what is in the upper vessel becomes forbidden through the flowing stream connecting them.

Rav Nahman said to Rav Huna: From where do you have this?

From where did you learn this law?

If you say from what we learned [if you learned it from the above Mishna]:

if you learned it from the above Mishna:

“A flowing stream, a steep slope, and a moist liquid are not a connection neither with regard to impurity nor with regard to purification,”

and you inferred: it is implied in the Mishna that only

with regard to impurity and purification is it not

a flowing stream, a steep slope, and a moist liquid

a connection; but with regard to forbidden wine, it is a connection.

This can be rejected:

Say the latter clause,

that is, from the latter clause it is evident that one cannot infer anything from the first clause at all, for we learned in the latter clause:

“A pool is a connection with regard to impurity and purification,”

and if so, if we also infer from the latter clause and say that only

with regard to impurity and purification is it a connection, but with regard to forbidden wine it is not a connection,

it follows that the first clause and the latter clause contradict one another: for in the first clause, forbidden wine is more stringent than impurity and purification, whereas in the latter clause, impurity and purification are more stringent than forbidden wine!

Rather,

certainly,

from this one cannot infer anything.

And since from this Mishna one can infer one thing and its opposite, certainly the tanna was not precise in his wording, and it is impossible to learn laws from an inference from his language.

The Gemara seeks another source for Rav Huna’s words:

We learned,

we learned in our Mishna:

“He took the funnel and measured

wine

into the gentile’s small flask,